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The Vermont Supreme Court, in October, upheld a trial court's decision finding the Vermont Human Rights Commission proved that the Limehurst Mobile Home Park had discriminated against families by restricting occupancy. The Court used the theory of "dis parate treatment" to hold that the defendants subjected families with children to unlawful discrimination. The Court then affirmed the award of $69,706.

The Commission said, "This is a significant victory for families with minor children who may be subjected to similar housing discrimination in the future and for the McCarthy family who was subjected to actual discrimination in this case. The decision i s the first recognition by the Vermont Supreme Court of some of the substantive issues presented under Vermont's Fair Housing and Public Accommodations Act, " (FHPA).

The Supreme Court upheld the decision that the defendants violated Vermont's FHPA by its policy of restricting the occupancy per mobile home to only two occupants, thereby discriminating against families with minor children.

The Court held that even though "no direct evidence is necessary to prove a disparate-treatment discrimination claim," the plaintiff "presented direct evidence of discrimination." The plaintiff established direct evidence that there was "a discriminator y practice prior to civil rights legislation, coupled with a post-legislation pattern of maintaining the status quo."

The Court said Ernest and Linda LaBrie, owners of the mobile home park, had directly prohibited minor children from living in the mobile home park prior to the enactment of the FHPA. The defendants maintained the status quo afterwards by restricting occ upancy to only two people per home. No families with children have moved into the Park since the LaBries have owned it.

The Court recognized that since Vermont's Fair Housing and Public Accommodations Act is a remedial statute it is to be construed "generously" and its exemptions are to be read "narrowly." The Court did not decide whether to apply the business necessit y test used in disparate-impact case law to disparate-treatment cases. However, it held that the defendants were unable to show that the occupancy standard met the statutory exemption even on the basis of showing a significant relationship to a significa nt business objective. The Supreme Court upheld the trial court's finding that "the defendants had failed to present credible evidence that an increase in the number of occupants per living unit would adversely affect the septic or water systems" and "th at there are less restrictive alternatives available to defendants."

Even though the Court agreed that a landlord could establish its own occupancy limit in the absence of any local or state occupancy standard, such a "privately enforced occupancy limit must be at minimum reasonable." They said the defendants "failed to s how that their actions against the McCarthys were reasonable or that the sixty-six-person limit for the whole park was reasonable."

Other Substantial Holdings of the Court:

1. Damages for emotional distress are proper under Vermont's FHPA. In the present case, expert testimony on causation was not required and the award for emotional distress was upheld.

2. Attorney's fees for discrimination cases brought by attorneys for the state are appropriately calculated using the fair market rate of the private bar and are not to be based on the actual cost to the state. "Indeed, it would be unreasonable to al low landlords who discriminate unlawfully to pay less-than-reasonable enforcement costs where the state employs the attorneys who enforce the law. We assume the Legislature did not intend the public to subsidize landlords found in violation of FHPA."

3. The Court also reiterated that the attorney fees were reasonable and would not be adjusted since the trial court had not abused its discretion in this case.

4. The Court held that the plaintiff was entitled to fees for time spent on its motion for attorney's fees, but that it was not entitled to fees for time spent reconstructing its time sheets. The Court remanded the case to the trial court for the limite d purpose of determining the number of hours by which the total fee must be reduced.